Could Your Driver's License Be At Risk?

By Beth Hester

(page 2 of 4)

Are You a Serious and Imminent Threat? Who Decides?

As the population ages, healthcare professionals will more frequently be faced with the difficult task of determining whether a patient is safe to drive and whether to report mature drivers (and others) with suspect abilities to the DMV. Maintaining safe highways is important, but preserving the physician-patient relationship, protecting a patient’s private medical information and fostering a collaborative approach that involves the patient’s family members when possible helps creates a supportive environment where touchy subjects like driving ability can be discussed.

It’s complicated. Neither the DMV, The Department of Health and Human Services (HHS), nor the Virginia Legislature have any guidelines or multi-pronged test to help medical professionals determine whether a person poses so severe a threat to themselves or public safety that they can in good conscience release PMI to the DMV, which then can decide to bypass the 15-day notice and reinstatement process outlined in Virginia Code.

In fact, much of the thinking behind ‘duty-to-warn’ laws and the meaning of the terms ‘serious and imminent’ have their roots within the psychiatric, social work and mental health communities. Over time, meaning was derived from crisis situations: persons deemed to be suicidal or homicidal, and from the perpetrators of mass-shooting incidents—not drivers ‘suspected’ of being impaired.

For example, in 2013 after the mass shootings in Newtown, Connecticut and Aurora, Colorado, the HHS Office of Civil Rights released to all healthcare providers a letter to make them aware that the HIPAA Privacy Rule does not prevent their ability to disclose patient information to law enforcement, family members of the patient or other persons when you believe the patient presents a serious danger to himself or other people.

Any preventable car-related death is one too many, but can one really make a correlation between premeditated mass murder by a psychopath who displayed definite warning signs and the potential danger that a mature driver with a ‘yet-to-be-determined’ level of cognitive impairment poses to the general public?

To help us navigate these issues, we reached out to Scott Alperin, a Virginia Beach-based attorney specializing in elder law, and also to a representative of HHS who would not be quoted in this article but who shared perspectives on the issues surrounding ‘serious and imminent’ as outlined in HHS publically accessible documents and via their website for professionals.

Alperin explains: “In drafting the federal regulations that govern HIPAA, the Department of Health and Human Services did not specifically define what constitutes ‘a serious and imminent threat to the health or safety of a person or the public.’ However, in recognizing the difficulty that healthcare professionals often face in attempting to comply with the HIPAA regulations, the Health and Human Services Office for Civil Rights (OCR) issued guidance in February 2014 to help explain when a healthcare provider may relay protected healthcare information to third parties. This publication does not have the force of law, but underscores the fact that a legal vacuum exists when defining a ‘serious and imminentthreat’ and theneed to provide direction in order to balance legal requirement or privacy against public safety concerns.

In the absence of a court ruling that addresses a particular circumstance, healthcare professionals are left to try to apply the law to their particular set of facts. I don’t think the DMV is at risk legally for encouraging healthcare professionals to report ostensibly impaired drivers. The legal risk falls squarely on the shoulders of the party maintaining and wrongfully disclosing protected patient information.

Obviously, these are very subjective determinations that depend upon the facts and circumstances of the particular case. If a court were to define ‘serious and imminent threat’ in the context of the regulation, it would be typical for the court to develop a multi-pronged legal test that would provide standards for future application. But the only way that a court will be prompted to develop a legal test is if there is an actual, justiciable controversy (i.e. an actual lawsuit) that gets before the court. Courts don't issue advisory opinions.

Regarding a legal remedy, the optimal fix would happen at the federal level through the promulgation of detailed regulations by HHS defining ‘serious and imminent threat’ that would be published in the Code of Federal Regulations. This is especially true in light of the fact that HIPAA is federal law and is being applied by the states. In the absence of guidance from HHS, the Virginia General Assembly could take action by adopting its own definition that would at least delineate the circumstances under which it would be legally appropriate for the healthcare provider to disclose protected health information to protect the motoring public.”

And fielding our questions about the release of medical information, legal opinion, preemption and HIPAA violations, the HHS contact helped clarify their stance:

HHS (like the DMV) defers to the assessment of the healthcare provider that an individual poses a serious and imminent threat, and there is the presumption that the provider is exercising their judgment and good faith.

HHS does not offer legal opinions, and they have no specific criteria for what constitutes a serious and imminent threat. Rather, they rely on the judgment of the healthcare provider.

Laws themselves do not violate HIPPA. However, if there are questions surrounding whether a particular use or disclosure of protected information is in violation of HIPAA, individuals have the right to file a complaint, and then HHS can open an investigation ‘where appropriate.’

HIPAA does not prevent states from enacting laws or require that elected officials request a preemption exception determination for any particular law. This means that state law can allow a medical provider to generally comply with the stricter HIPAA law without violating more permissive state law.

So basically, unless a complaint is filed questioning the report of a medical professional, and it is deemed worthy of follow-up, HHS would not intervene, or offer an opinion in a particular case, nor would they question the report of a medical professional.

Do you know someone who has experienced a license suspension under circumstances similar to Grayson’s? Share your comments with other Coastal Virginia readers below.